Editorial Flip-Flop

The Daily News is riding a long wave of publicity. First there was the tabloid's technical triumph over the blackout, which resulted in 27 pages of coverage on a day when the New York Post was nowhere to be found. And then, about three weeks ago, the paper began crowing in its news stories and editorials about how columnist Juan González "was the first to sound the alarm" that ground zero was a toxic dump after 9-11. Two recent editorials have called on the feds to set the record straight and clean up downtown, once and for all.

González definitely had the scoop: In October 2001, at a time when federal officials were telling us downtown was "safe," he obtained internal government documents that revealed toxic substances in the air and soil around ground zero, sometimes at levels far exceeding federal standards. It was shocking news then, and it seems prescient now, after the recent disclosure that the White House leaned on former Environmental Protection Agency chief Christie Whitman to downplay the dangers surrounding ground zero, and the EPA's own admission that it didn't have the facts straight.

As usual, there's a backstory. This one involves executive editor Michael Goodwin, who is in the running to take over when current News editor in chief Ed Kosner resigns, and who has gotten raves for directing the blackout coverage. Now that the News has jumped on the EPA cause, newsroom gossips are buzzing about how Goodwin was not always so crazy about González's scoop. Indeed, sources say, Goodwin was running the newsroom in 2001 when News editors discouraged the columnist from pursuing the toxic story and buckled under pressure from federal and local authorities. González documented that intense newsroom struggle in his 2002 book Fallout: The Environmental Consequences of the World Trade Center Collapse.

The trouble began on October 26, 2001, when the News slapped González's discovery of high toxic levels on its front page, under the headline "A Toxic Nightmare at Disaster Site." According to Fallout, several authorities contacted the News seeking to discredit the story, including "one of Giuliani's deputy mayors" who "called a top editor" to complain. (In the Giuliani days, Goodwin was criticized for going easy on the mayor. González does not name Goodwin in the book, but he was executive editor at the time, reporting to Kosner.)

"So great was the backlash," González wrote, "that, from then on, top editors at the Daily News showed a marked reluctance to pursue stories about environmental pollution downtown, especially when no other newspaper in the city . . . was following up." It seems the only News editor with cojones was then metro editor Richard Pienciak, who "was openly furious at how quickly our superiors had accepted the assurances of government officials," according to Fallout. But when Pienciak appointed a four-reporter team to investigate the toxic threat, the metro editor "was removed from his post without explanation" and the team was "immediately dissolved."

In response to a request for comment from Goodwin, Daily News spokesperson Ken Frydman denied any flip-flopping on the EPA story. "Our coverage, including many Juan González columns," he said, "has been as vigilant and thorough as anybody's."

Prisoner, Heal Thyself

On August 5, a lawyer who represents Correctional Medical Services, a Missouri-based company that provides health care to prisoners, sent a letter to Harper's editor in chief Lewis Lapham accusing him of publishing a "poisonous libel." The letter came in response to "Sick on the Inside: Correctional HMOs and the Coming Prison Plague," a scathing 8,000-word article in the August issue.

CMS spokesperson Ken Fields told the Voice that he never had a chance to respond to many points raised by the author, resulting in the publication of a number of "false allegations and inaccuracies." At this point, Fields says, CMS is not suing Harper's. "We just want the opportunity to provide accurate information." The letter to Lapham requested a "meeting with you, or your counsel, or both."

On August 18, a lawyer who represents Harper's wrote back, defending the story and offering to publish a letter to the editor, "subject only to editing for space."

The story was penned by Wil S. Hylton, a former Esquire contributor who recently followed his editor to GQ. Hylton's central argument is that CMS does not provide universal screening and treatment for hepatitis C, at a time when hep C is spreading rapidly in the prison population. Along the way, he recounts myriad horror stories involving prisoners' medical care and argues that the privatization of prison health care has resulted in a "system run amok." It's not the first time CMS has come under fire. The quality of care provided in certain cases was the subject of a 1998 St. Louis Post-Dispatch series, and other prisoners' cases are currently the subject of a Justice Department investigation. You'd be surprised how many people die behind bars.

Hylton dismisses CMS's complaint as "90 percent invective." He says he is not surprised that the company first "stonewalled" him and then attacked his work post-publication for not including its perspective. He recalls making several requests for sit-down interviews with CMS doctors or with Fields, all of which were rebuffed. At some point, he says, Fields told him that CMS would respond to his questions only in writing.

Fields denies stonewalling Hylton. He says he did not set up interviews because the reporter only gave him the vaguest description of his line of questioning, with no details about specific issues. "He said he wanted to talk to somebody about the challenge of providing health care in a correctional environment," recalls Fields. Hylton stopped calling after Fields requested that he ask any prisoners he was interviewing to sign waivers, so that the company or a patient's representative could discuss their medical histories.

In the end, Hylton submitted no questions to CMS at all. Instead, he wrote a passage explaining his attempts to get a face-to-face interview. During the fact-checking process, Harper's editors sent 14 questions to Fields and included a few brief responses. Fields contends that Harper's did not provide enough detail for him to respond in full, and he was never told the names of any prisoners mentioned in the story.

John Sullivan, who edited the piece, says Hylton "went beyond the call in attempting to communicate with the company," which operates in a "culture of secrecy." Says Sullivan, "I don't doubt that there are enormous difficulties involved in providing health care to this group of people. It's just that I have yet to see CMS counter anything said in the piece in any substantive way." Asked who should make the next move, he said, "I think the ball's in their court."

Says Fields, "I don't think a short letter to the editor" would address all of CMS's complaints. Stay tuned.

Can the 'Times' Be Sued?

Should The New York Times have to pay damages to readers who were duped by its decision to publish the fraudulent work of Jayson Blair? So say Clay Calvert and Robert D. Richards, two lawyers who teach in the College of Communications at Pennsylvania State University, in an article that will appear in the fall 2003 edition of the Fordham Intellectual Property, Media and Entertainment Law Journal.

The article introduces the novel legal theory of "journalistic malpractice" whereby, in the Times' case, "the continued publication of Blair's stories, despite the serious doubt about his work entertained and expressed by his direct supervisors, points to reckless disregard for the truth by key personnel at the newspaper."

Given Blair's long trail of factual errors, the article argues, his editors either knew or should have known that he was "a frequent and deliberate liar." This raises some interesting questions: if a reporter is not meticulously accurate, does it follow that he might be stealing material and making things up? Did Blair's editors exercise "reasonable care" to prevent this from happening?

Author Calvert imagines a world in which media companies would be held legally accountable for telling the truth, and the Times could be forced to pay for every one of Blair's lies. As it is, he says, the journalism profession lacks meaningful oversight, and the Times is free to "fire its editors, issue this massive mea culpa, hire an ombudsman, and go on its way. We would say that that fault on Blair should be imputed back up the chain of editors and all the way to the top."

While admitting that it might be hard to prove in court that Times readers were damaged, Calvert defends his theory with this easy analogy: "If you owned the school bus company and you knew one of your drivers had a bad driving record, would you allow the person to continue to drive the bus? Blair was an accident waiting to happen."